When is a case removable to federal court? The general rule is that removability is determined at the time a case is filed. One exception is the so-called “voluntary-involuntary” rule, which permits removal only when the plaintiff’s voluntary action in state court creates federal jurisdiction. The textbook example is the voluntary dismissal of a non-diverse defendant who settled with the plaintiff. The textbook counterexample is when the non-diverse defendant is dismissed via contested motion—an involuntary dismissal. In Hoyt v. The Lane Construction Corporation, 927 F.3d 287 (5th Cir. 2019), the Fifth Circuit blurred the line between these categories and expanded the cases that can be removed to federal court.Continue Reading Fifth Circuit Opens Door to Removal Following Involuntary Dismissal of Non-Diverse Defendant
Liskow & Lewis Secures Key Rulings in Class Action Litigation
Liskow & Lewis’ Shannon Holtzman, James Brown, and A’Dair Flynt recently secured several key rulings in a putative class action, successfully opposing a complex remand motion under the Tax Injunction Act and the Class Action Fairness Act (“CAFA”) and obtaining a dismissal with prejudice of the claims against Liskow’s clients in Robert J. Caluda, APLC, et al v. The City of New Orleans, Linebarger, Goggan, Blair & Sampson, L.L.P, and United Governmental Services of Louisiana, Inc., No. 19-2497, 2019 WL 3283138, 2019 WL 3291014 (E.D. La. July 22, 2019).Continue Reading Liskow & Lewis Secures Key Rulings in Class Action Litigation
New Final Regulations Expand the Availability of HRAs
On June 13, 2019, the Department of Labor, the Department of Health and Human Services, and the Department of Treasury (the “Departments”), published final regulations which significantly broaden the types of health plans that may be integrated with a health reimbursement arrangement (“HRA”). More specifically, beginning January 2020, the finalized rules allow HRAs to be integrated with certain qualifying individual health plan coverage and/or Medicare. The final rules reverse current guidance which requires HRAs to be integrated with only qualifying group health plan coverage. Practically speaking, this means that employers, beginning in 2020, will be allowed to subsidize employee premiums in the individual health insurance market and/or Medicare using pre-tax dollars, provided certain conditions are met. The final rules also allow certain HRAs to reimburse participants for certain premiums paid for excepted benefits. To achieve these results, the final rules create two new types of HRAs.
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Texas Supreme Court to Review $500 Million Verdict in Case Involving Formation of Partnership to Construct Crude Oil Pipeline
Last week the Texas Supreme Court granted review in Energy Transfer Partners, L.P. v. Enterprise Products Partners, L.P., a case concerning Texas partnership law. Energy Transfer Partners has garnered significant amicus support on both sides of the “v.” and has been closely followed by the energy industry.
SCOTUS Decides Dutra Group v. Batterton
Today the United States Supreme Court issued its decision in this landmark case concerning punitive damages. The six justices in the majority opinion reversed the Ninth Circuit and resolved a circuit split on this issue. The question presented was whether punitive damages may be awarded to a Jones Act seaman in a personal injury suit alleging a breach of the general maritime duty to provide a seaworthy vessel. Justice Alito wrote the majority opinion, joined by Chief Justice Roberts, Justices Thomas, Kagan, Gorsuch, and Kavanaugh. Justice Ginsburg dissented, joined by Justices Breyer and Sotomayor.Continue Reading SCOTUS Decides Dutra Group v. Batterton
Privilege Claw-Back Provision Upheld by Delaware Courts
In Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, 80 A.3d 155 (Del. Ch. 2013), the Delaware Court of Chancery clarified that under Delaware law the privilege for pre-merger communications passes to the surviving company after a merger is consummated. The privilege transfer would include the privilege for pre-closing communications regarding the merger itself. The communications at issue in Great Hill were the sellers’ pre-closing communications with the target company’s outside counsel that were in buyer’s possession post-close. The Court urged merger parties to consider the need for contractual provisions that would protect against a privilege transfer should a different result be desired, the so-called privilege claw-back provision, which was absent from the Great Hill merger agreement.Continue Reading Privilege Claw-Back Provision Upheld by Delaware Courts
5th Circuit Grants En Banc Rehearing to Address Federal Officer Removal
After years of inconsistent rulings, the Fifth Circuit is poised to address a removal issue with significant ramifications for Louisiana tort cases. The previous version of 28 U.S.C. § 1442 authorized removal to federal court of a suit against a federal officer “only when the state suit was ‘for any act under color of such office.’” The Fifth Circuit, interpreting this language, held that the removing party must show a causal connection between its actions and the plaintiff’s claims. The causal connection requirement demands more than “mere federal involvement[;] instead, the defendant must show that its actions taken pursuant to the government’s direction or control caused the plaintiff’s specific injuries.”Continue Reading 5th Circuit Grants En Banc Rehearing to Address Federal Officer Removal
Louisiana Supreme Court Limits Effect of Collateral Source Rule in Personal Injury Cases
On May 9, 2019, the Louisiana Supreme Court issued an important opinion restricting application of the collateral source rule in personal injury lawsuits. In Simmons v. Cornerstone Investments, LLC, et al., 2018-CC-0735 (La. 5/8/19), the Court held the collateral source rule inapplicable to medical expenses charged above the amount actually paid by a workers’ compensation insurer pursuant to the workers’ compensation medical fee schedule.
EPA’s New Audit Program for New Owners of Upstream Oil and Natural Gas Facilities
On March 29, 2019, the U.S. Environmental Protection Agency (EPA) announced it had finalized a voluntary disclosure program for new owners of upstream oil and natural gas exploration and production facilities. Under the program, EPA will not impose any civil penalties on new owners of these facilities (which include well sites and associated tanks and vapor control systems) who find, self-disclose, and correct Clean Air Act violations pursuant to an audit program agreement with EPA. EPA is offering the program to such new owners because EPA and states have seen significant excess emissions and Clean Air Act noncompliance from vapor control systems at these facilities.Continue Reading EPA’s New Audit Program for New Owners of Upstream Oil and Natural Gas Facilities
Derivatives: Regulators Address No-Deal Brexit Cross-Border Issues
On March 29, the UK House of Commons rejected, for the third time in three months, a draft withdrawal agreement for a negotiated exit of the UK from the European Union. The UK now has until April 12 to present the EU with a new exit proposal. The lack of a negotiated transition for the UK (a “no-deal Brexit”) could present uncertainty for participants in the global derivatives markets. In response to concerns over such potential uncertainty, regulators on both sides of the Atlantic are taking measures to reassure the markets that U.S.-UK derivatives activity will continue with minimal interruption.
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